public place provided or set apart for nudity, has been considered improper (sec Moffet ". State, 340 So.2d 1155, 1156 n,3 (Fla.

Transcription

1 ORDINANCE NO AN ORDINANCE OF THE CITY OF BONNEY LAKE, PIERCE COUNTY, WASHINGTON, AMENDING CHAPTER 9 OF THE BONNEY LAKE MUNICIPAL CODE TO CREATE A NEW SECTION 9.35 RELATING TO PUBLIC NUDITY. WHEREAS, Chapter of the Bonney Lake Municipal Code regulates adult entertainment facilities; and WHEREAS, the City Council desires to regulate nudity in public places in general; and WHEREAS, since the beginning of civilization, appearing nude in a public place, which is not a public place provided or set apart for nudity, has been considered improper (sec Moffet ". State, 340 So.2d 1155, 1156 n,3 (Fla. 1977); and WHEREAS, appearing nude in a public place, which is not a public place provided or set apart for nudity, was H criminal offense at common law and was considered an act malum in se (wrong in itsel!); and WHEREAS, appearing nude in a public place, which is not a public place provided for or set apart for nudity, is engaging in conduct which often serves to impose sllch person's nudity' on others who do not seck it out, who arc not able to reasonably avoid observing it, and who may be offended or distressed thereby; and WHEREAS, appearing nude in a public place, which is not a public place provided for or set apart for nudity, is still subject to the general disapproval of the people of the City of Bonney Lake; and WHEREAS, the appearance of persons in the nude in public places, which are not public places provided or set apart for nudity, generally is known to increase incidents of lewd and lascivious behavior, scxu,li Hssaults, attracts other criminal activity to the C(Hnmllniry, encourages degradation of women, and facilitates other activities which break down family structures and values; and WHEREAS, without regulation, appearing nude in a public place, which is not a public place provided for or set apart for nudity, constitutes harmful conduct; and WHEREAS, Bonney Lake is a community intending to be known for its wholesome civic and recreational activities and its traditional family-oriented lifestyle; and W]IEREAS, the Council is generally aware of incidents in Bonney Lake and in other communities of lewd and lascivious behavior associated with public nudity; and WHEREAS, the Council has received written and oral evidence regarding the negative effects of public nudity; and WHEREAS, the Council has reviewed the findings of other jurisdictions regarding the secondary effects of sexual-oriented businesses and hereby confirms and ratifies that these findings arc

2 relevant to the City of Bonney Lake and support the City's regulation of adult entertainment facilities and public nudity; and WHEREAS, it is in the public interest to maintain the social order, morality, health, welfare, and safety of the citizens of Bonney Lake; and WHEREAS, regulation of public nudity will protect and preselve the public health, safety, and welfare of the people of the City of Bonney Lake by restricting the act of being nude to non public places or to public places provided for or set aside for nudity; and WHEREAS, the City Council finds that the prohibitions contained herein arc the reasonable and minimally intrusive restrictions required so as to regulate conduct that is adverse to the public health, safety, welfare, and morality when nudity occurs at locations where the public is present or likely to be present, or where such conduct would be readily visible to the public; and WHEREAS, the exceptions provided are adequate protection to persons who, without such exceptions, might be prevented or discouraged from exercising constitutionally protected rights; and WHEREAS, cities may regulate the conduct of appearing nude in public places, which are not public places provided or set apart for nudity, see e.g., Seattle v. Buchanan, 90 Wn.2d 584 (1978); Ina Ina, Inc. v. Bellevue, 132 Wn.2d 103 (1997); Furfaro v. Seattle, 144 Wn.2d 36.3, 27 PJd 1160 (2000); O'Day v. King County, 109 Wn.2d 796, 749 P.2d 142 (1988); Kitsat) County v. Kev, Inc., 106 Wn.2d 135,720 P.2d 818 (1986); City of Erie v. Pat,'" 529 U.S. 277 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Gatena v. County of Orange, 80 F. Supp. 2d 1331 (M.D. Fla. 1999), afn 226 FJd 649 (11th Cir. 2000), cert. den. 531 U.S (2001); Cafe 207, Inc. v. St. Jol1m County, 8561'. Supp. 641 (M.D. Fla. 1994), affd 66 FJd 272 (11th Cir. 1995), cert. den. 517 U.S (1996); Davis v. Gates, 192 U.S. App. Lexis (9th Cir. 1992), Bright Ligl,t.1 v. City of NewtJOrt, 830 F. Supp. 378 (E.D. KY 1993), Daytona Grand v. City of Dayton Beach, 490 F.3d 860 (11th Cir. 2007), eert. denied 128 S. Ct. 1246, 170 L.Ed.2d 66 (2008), and the City Council deems itself adequately advised of the general findings therein regarding unlawful behavior associated with public nudity. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BONNEY LAKE, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. The following chapter, 9.35 Public Nudity is hereby added to the Bonney Lake Municipal Code: Intent. The intent of this section is to protect and preserve the health, safety, and welfare of the people of the City of Bonney Lake by prohibiting any person from recklessly, knowinclv,...qi intentionally appearing nude in a public place, or recklessly, knowingly, or intentionally causing or permitting another person to amlear nude in a public place within the City, subject to the exceptions provided in BLMC

3 Definitions The follow definitions apply to this chapter: (a) Public [l/ace provided or set apart for nudity means an enclosed Qublic restroom, an enclosed functional shower or locker room facility, an enclosed sauna. a motel room or hotel room designed and intended for sleeping accommodations. or the location of a bona fide private club whose membership as a whole engages in social nudism or naturalism (a nudist resort or camp), an adult entertainment establishment as defined under chapter of the Bonney Lake Municipal Code, and any similar public places in which nudity is necessarily and customarily expected outside of the home and the sphere of privacy constitutionally protected therein, (b) Public place means any location open to the common and general use, participation, or enjoyment of the public where the public is present or likely to be present, or any location where the public is invited and is free to go upon special or implied invitation, or any location where a person may reasonably be expected to be obselved by the Qublic; this definition includes, but is not limited to, places open to the public for business or colnn1cl"cial purposes Public nudity and exposure of certain body parts prohibited. (a) It shall be unlawful for any person 10 years of age or older to recklessly, knowing intentionally al21,ear in a public place other than a public place provided or set apart for nudity, or to recklessly. knowingly. or intentionally cause or permit another person 10 years of age or older to aqpear in a public place other than a public place provided or set apart for nudity. in a state of nudity, which includes a state of dress or undress such that any of the following [)lilly.parts or 1,ortions thereof arc exposed to view or are covered with anything other than a full and opaque covering which completely covers all of the described area: (1) The male or female genitals, pubic area, buttocks or anal cleavagl (2) The nipple or arcola of the female breast; and in addition at least one-half of that outside surface of the breast located below the top of the areola, which area shall be reasonably compact and contiguous to the areola. ilil Attire which is insufficient to comply with these requirements includes but it not limited to those items commonly knows as C)-strings, Tbacks, dental floss, and thongs. (c) BodY-l)aint, body dye, tattoos, latex, tape, or any similar substance applied to the skin surface, any substance that can be washed off the skin, or any substance designed to

4 simulate or which by its nature simulates the appearance of the anatomical area beneath it. is not full and opaque covering as required by this section Exceptions: This chapter shall not be construed to prohibit nudity associated with: (1) The act of breastfeeding or expressing breast milk; (2) Plays. operas. musicals. or other dramatic works which are not obscene: (3) Classes. seminars. and lectures held for serious scientific or educational purposes: (4) Non-obscene adult entertainment exhibited in adult entertainment facilities as regulated under chapter BLMC; (5) Lawful, first amendment protected protests: (6) Children under 10 years of age Penalty Any person who violates the terms of this chapter shall be guilty of a misdemeanor. Section 2. This Ordinance shall take effect thirty (30) days after its passage, subject to prior approval by the Mayor and prior publication for five days as required by law. PASSED by the City Council and approved by the Mayor this 10' " day of March, ATTEST: APPROVED AS TO FORM:,rwood T. Edvalson, CMC, City Clerk &JlA L( kr James J. )l)e, City Attorney Passed: 3/10109 Valid: 3/10109 Published: 3/18/09 Effective Date: 4/9109

5 City of Bonney Lake, Washington Council Agenda Bill (C.A.B.) Approval Form Del!artment/Staff Contact: Council/Wrkshl! Mtg Date: Agenda Bill Number: Legal Services/Dionne March 10, 2009 AB09-35 Ordinance Number: Resolution Number: Council member Sl!onsor: D09-35 BUDGETINFORMATON 2009 Budget Amount Reguired EXl!enditure Iml!act Remaining Balance None. EXl!lanation: There is no budget impact associated with this ordinance. Agenda Subject: Council consideration and possible adoption of an ordinance regulating public nudity within the City of Bonney Lake. Administrative Recommendation: Approve. Background Summary: While responding last year to the negative public opinion expressed related to allegations of publicly visible nudity at one or more business establishments in the City of Bonney Lake, the City'S legal counsel became aware of the need for an ordinance to assist the City to regulate nudity in public places in general. To promote Bonney Lake's intent to be known as a community with wholesome civic and recreational activities and a traditional family-oriented lifestyle, tbe attached ordinance has been prepared for Council consideration and action. Attached to the ordinance is additional background information. Council Committee Dates: Finance COlllmittee: Commission Dates: PJanning COl11l11ission: Board/Hearing Examiner Dates: Park Board: Public Safety Committee: Civil Service Commission: Hearing Examiner: Community Development & Planning COlllmittee: Council Workshops: Council Action' Council Call for Hearing: Council Hearings Date: Council Referred Back to: Council Tabled Until: Workshop: Council Meeting Dates: Conunittee: 02124/09; Date City Attorney Reviewed: